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The American Prospect - articles by authorenCode and Other Laws of Cyberspacehttp://prospect.org/article/code-and-other-laws-cyberspace
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<p>American readers of newspapers, magazines, and books are now subjected to a veritable fire hose of information about the Internet every day. The Internet has become, in the past few years, its own genre of news, like sports or entertainment. In many major U.S. cities, it seems even to dominate the social conversations one inevitably overhears in restaurants, bars, and cocktail parties. It's a bottomless source of chatter.&#13;</p>
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<p>This onslaught of information--from the trivial to the epochal, and everything in between--has the paradoxical effect of making it difficult to discern what is actually going on with this powerful technology that is transforming communications, politics, economics, and the law. This is not just the familiar problem of an inability to see the forest for the trees; in the case of the Internet, the trees themselves seem to be continually morphing into something unfamiliar and novel. The result is often, for many people, an incoherent phantasmagoria of new technologies, jargon and neologisms, instant fortunes, upheavals in business and the workplace, and new and vexing controversies--in short, a carnival of sensory overload that obliterates any perception of historical patterns.&#13;</p>
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We're therefore fortunate to be able to read the thoughts of Lawrence Lessig, a law professor who is clear-headed enough to see some long-term social trends emerging from the Internet's development, and who can write about these trends in a way that is engaging, compelling, and richly detailed. Lessig has the uncommon ability to sort through the endless spew of talk and news about the Internet to find what matters and why we should care. His recent book <i>Code and Other Laws of Cyberspace</i> is one of the most important works about the Internet to date, and it's a great relief that the book is--for a book about law-- readable, enjoyable, and, for the most part, dead-on accurate.&#13;</p>
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Lessig is relatively young--he's 38--but he has already established himself as a formidable intellect in Internet-related law and public policy. He made his reputation as a professor at Harvard Law School; this spring he accepted a new position at Stanford University. He's become semi-famous as the former special master in the federal government's antitrust prosecution of Microsoft. The judge overseeing that case, U.S. District Court Judge Thomas Penfield Jackson, wrote last December, "The court itself might find [Mr. Lessig's views] more consistent with the public interest." This is yet another reason to read Lessig's book: The ideas in it are apparently having some real impact on one of the most important antitrust cases in U.S. history, and the endorsement of this particular judge will give Lessig's arguments more influence than most authors can typically hope for. The unfortunate rarity in which the phrase "public interest" is used in discussions about the Internet lends Lessig's contributions even more weight. In other words, even apart from the persuasiveness of his book, he bears watching.&#13;</p>
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Lessig has several goals in <i>Code,</i> and each of them is worth his effort and that of his readers. First, he takes on the prevailing and widespread political philosophy of the engineering and technical fields, free market libertarianism, by arguing against the common belief among experts in these fields that the Internet is an expression of libertarianism in its very technical design. Lessig quite correctly points out that the technical architecture of the Internet is not fixed for all time, and that the evolution of two forms of "code"--legal and software--in the service of specific interests, particularly those of business, can radically alter the architecture and user experience, despite the romantic hopes of the libertarians. The Internet could be transformed by companies of the "new economy," reinforced by government legislation that these companies promote. Instead of the open, decentralized, individualist Internet of the recent past, we could get a system primarily aimed at vacuuming consumers' wallets. Many public-interest activists believe, and Lessig seems to agree, that this is already well underway.&#13;</p>
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Second, Lessig describes in great detail how this transformation of the Internet is occurring today. When technical professionals talk about the "next-generation Internet," or "Internet 2" (a federally funded research program involving more than 100 university partners), they are referring to a new system with far greater data transmission speeds than we have today, which will in turn allow new and lucrative applications such as online, on-demand video.&#13;</p>
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But public-interest activists who work on telecommunications policy are now warning about another kind of "next-generation Internet," one whose technical architecture and legal framework are being reconfigured to serve commer-cial interests, particularly those of the booming "dot-com" business sector. The developments pointing to this new kind of Internet are happening every day, incrementally. There are new pressures coming from the wealthy technology industry to change the way the Internet works and to diminish or eliminate anonymity, squeeze the free public space of civic expression, migrate from open technical standards to proprietary technologies, clamp down on and dramatically extend intellectual property laws, avoid any regulation protecting privacy, and, most importantly, create the conditions for a massive vertical integration of the industry so that the Internet can be dominated by a handful of corporate behemoths in the "info-tainment" business. Given the influence of money on the U.S. political process, most politicians not only are open to these suggestions from industry, but are on the industry bandwagon with enthusiasm.&#13;</p>
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Lessig uses the clever and rich rhetorical metaphor of "code" to describe the emerging symbiosis between legal code that serves specific interests and software code that can embed those interests in the technical architecture and operation of the Internet. He is careful enough not to push the similarities of legal and software code too far: He acknowledges that software is not publicly adjudicated or legislated, nor is legal code as malleable or ephemeral as software. By code he means a plan, an algorithm, which defines the instructions for either a machine or a legal system. His useful observation is that legal code and software code can work hand in hand to configure a system's architecture and structure human social behavior and possibilities.&#13;</p>
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Lessig cites many detailed examples. For one, companies are increasingly alarmed about the threat to intellectual property posed by the Internet, which can be regarded as a giant copying machine. To quell these fears, corporate lobbyists have pressed for a radical increase in the power of copyright enforcement, and some companies are planning or investigating intrusive software programs that will seek out and punish copyright violators. Automated "copyright information management systems" may someday roam the Internet looking for illegal copies on users' hard disks and either report the violators or erase the suspect copies. Likewise, the rising concern about computer hacking is leading to a combination of laws and security applications that could alter the free character of the Internet, compromise anonymity, and reinforce the intimidating power of large institutions.&#13;</p>
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Lessig offers a four-axis matrix of factors that shape the capabilities and character of a system: architecture, meaning the technical and physical composition of the system; the market, which determines not only what is economically feasible but whose interests are represented; social conventions; and law. These factors are interdependent and can be mutually reinforcing or in conflict with one another. Social policy, argues Lessig, tends to seek equilibrium among these factors, although perfect agreement is always out of reach. His point is that the technical architecture of the Internet, which was once more or less autonomous because of its limitation to a handful of researchers and technical experts, is now neither independent nor autonomous. It will significantly influence the law and be influenced by the law as well as by norms and the market. The question is, who gets to decide its future?&#13;</p>
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<p>It is at this juncture that Lessig, in my opinion, falls short of providing a complete and satisfactory answer. As a lawyer and law professor, he understandably sticks close to the trajectory of the law itself as an arbiter of disputes and controversies. He uses the terms "politics" and "public interest" but only in their most generic and shorthand senses. He doesn't explore, for example, how political disputes about the interaction among his four cardinal axes might engage large numbers of people in public discourse. He doesn't offer his thoughts, if he has any, about the political implications of an emergent legal and technical symbiosis that appears to favor the exclusive influence of experts and elites, like Harvard Law School professors.&#13;</p>
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<p>Despite the preoccupation of most elites in the United States with the Internet, there is a deafening silence on this topic in U.S. politics generally. The Internet rarely plays much of a role in political debates that shape large constituencies. No issue attached to the Internet has much sway with voters today. This seems to affect how intellectuals talk about Internet politics. Most thoughtful authors describe a struggle of pure ideas, an ongoing intellectual debate within the small group of highly educated people who know about these things and who occasionally see their opinions have some impact on legal cases, legislation, policy making, or elite thinking.&#13;</p>
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What's missing is reflection on the Internet's influence on what has traditionally been the source of real change in this country: mass politics; a reorientation of large-scale public opinion; a sea change of public sentiment that pulls with it legislators, judges, political parties, and leaders.&#13;</p>
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The fact that this is absent today amidst so much elite fascination with the Internet is portentous in itself. It may account for Lessig's final pessimism, since he seems to conclude that powerful and wealthy interests will soon have their way with the Internet and we may thus lose many of its most democratic features. I sometimes share this pessimism. But I hope that others, and perhaps Lessig himself in a subsequent work, can offer the American people a more optimistic future and a more populist strategy.&#13;</p>
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</center></div></div></div>Fri, 16 Nov 2001 21:48:23 +0000140623 at http://prospect.orgGary Chapman